Passionate about IP! Since June 2003 the IPKat has covered copyright, patent, trade mark, info-tech, privacy and confidentiality issues from a mainly UK and European perspective. The team is Eleonora Rosati, Annsley Merelle Ward, Neil J. Wilkof, and Merpel. Nicola Searle is currently on sabbatical. Read, post comments and participate! E-mail the Kats here

The team is joined by GuestKats Mirko Brüß, Rosie Burbidge, Nedim Malovic, Frantzeska Papadopolou, Mathilde Pavis, and Eibhlin Vardy

Friday, 15 January 2016

With a heavy heart, Merpel reports that she has just learned that Mr Battistelli, President of the EPO, has just fired the current chair of SUEPO, Elizabeth Hardon, and an ex-chairman, Ion Brumme. SUEPO Treasurer, Malika Weaver has been downgraded. The charges of which Merpel has been aware (see her post here) seemed tenuous to the point of being trumped up, and in all three cases the sanction imposed has been more than was recommended by the Disciplinary Committee: in the case of Elizabeth Hardon, there has been imposed a pension sanction not suggested by the Disciplinary Committee, in the case of Ion Brumme downgrading rather than firing was suggested, and in the case of Malika Weaver the Disciplinary Committee recommended suspension of career advancement, not downgrading. This has the appearance of spite, and accords with no concept of judicial fairness. Merpel is shocked and appalled. Her heartfelt sympathy goes to all three individuals involved.

Is there any way to get rid of M.Battistelli?He is a shame for the whole patent communitya shame for EPO and a shame for the french people.We should start a "petition" asking for his firing from EPO.We're in a democracy, aren't we?(except EPO apparently)

The Board to which the President reports needs to do something. The man is out of control. I suspect FIFA will be looking for a new leader soon, perhaps he can take on this role where he'll do less damage to the reputation of the patent profession in Europe. In the meantime, examiners and applicants suffer.

What I don't understand is why is this of such concern to IPKAT? Surely, this online stoking cannot have helped to resolve this. So much time is spent on this in this blog and some of us just gloss over it and move on to read other stuff. However, it appears not very different to what occurred at the UK Patent Office 20 odd years ago (maybe less) and there was no online forum to vent concerns (some memories are short); no different to what we understand is happening in other parts of the UK Civil Service where staff are subject to humiliating "re-apply for your own jobs" scenarios year in year out, where the over 40s are sidelined etc.

This is also fairly commonplace elsewhere in other international bodies. It all sounds very familiar. Maybe the staff in those other institutions just keep their heads down more.

We need a Europe-wide co-ordinated strategy to finally rid ourselves of this pernicious President, who is harming the EPO, its staff and european industry. I am eager to know what I can do in my Member State to help achieve this. One thing that strikes me is that, as I have read somewhere in a SUEPO publication, it may be possible to sue my government directly as complicit in denying me my rights, e.g., the right to be represented by a Union, the right to a fair and timely hearing, etc, along the lines of the successful Dutch case. If such cases were to be started in every Member State, then indeed our AC members might wake up.

It has been reported that German, French and Dutch delegates to the AC spoke up at the last meeting to express concern about the "social situation" and the EPO's actions against SUEPO representatives. Where was the voice of the delegates from the UK? Why did they not also voice concern? They surely cannot claim to have been unaware of the serious grounds for concern.

As a Brit myself, I am truly ashamed of the apparent complicity of the UK's delegation in allowing this to come to pass. Whilst no single delegation has the power to overrule the will of the majority, surely not even BB could withstand concerted opposition from delegates of all of the TOP4 countries.

Whilst the SUEPO representatives may or may not have been whiter than white, it is not hard to see that the charges against them would not have passed muster before any competent court. I find it particularly ironic that part of (if not the core of) the charges against them relied upon a reference to provisions of German national law. Not only was no one on the disciplinary committee competent to rule on points of German national law, but the SUEPO representatives were unable to rely upon the protections that the national law would offer them!

Quite frankly, I am disgusted that applicant's money is being wasted on this whole sham - and that waste is made even worse by the fact that the President did not even follow the DC's recommendations!

I predict that the absence of respect for democracy and the rule of law that is so evident from recent events at the EPO will have profoundly unpleasant consequences. However, my fear is that none of those consequences will touch those who are currently shielding behind the veil of immunity. Perhaps it is time for the AC to lift that immunity?

I am a mere external observer to these events, but I would wager that this is going to backfire very badly on BB and his clique. SUEPO now has more of a cause than ever for disgruntled or fearful employees to rally around. The numbers attending the demonstrations and taking part in future strikes will surely only grow from this point onwards.

Then again, perhaps this was BB's plan all along. In his eyes, SUEPO will no longer be a negotiating partner in view of such demonstrations. Hey presto! An excuse to finally call off the "social dialogue" which the management is (allegedly) committed, despite all its actions and announcements so far having shown that commitment to be a total sham.

Do the ServRegs (or anything else) prevent the now-fired staff members from speaking out? As they are no longer employees of the office, perhaps it is time for the full details of their side of the story to emerge. The EPO no longer has any power over them. Full disclosure of all the documentary evidence might jolt a few of the more complacent AC delegates into action.

Clooney remarks:In the past few months this and other blogs have published a huge number of contributions and evidence in respect of the manifest violations of human rights and of the rules of law by Mr Battistelli and his clan. A number of press articles have also appeared with highlights of the arrogance and cynicism of Mr Battistelli and members of his magic circle, and the negligence and apathy of the Administrative Coucil. Enough evidence to trouble and irritate any normal thinking mind. Unperturbed by the mounting criticism, Mr Battistelli and his supporters carried on implementing their programme and now they have sacked staff representatives based on mock trials and bogus evidence. What really angers me is the total indifference of the host countries, in particular Germany. The Germans hide themselves under the smoke screen of the special status of the EPO. How hypocritical! I have now completely lost my trust in their democracy as I'm convinced that for their own sake they would not hesitate to tolerate any misbehaviour. They could gain my respect back only if, in retaliation for the EPO dictatorship, they will refuse to ratify the Unitary Patent convention.

A comment just published on the website of French MP, Pierre Le Borgn’(my translation into English)

Sanctions against trade union representatives at the EPO: a disgrace and a deep injustice15 January 2016

"I learned with astonishment the decision announced this morning by the President of the European Patent Office (EPO), Benoît Battistelli, to punish harshly three staff members of the EPO, all of them Committee members of the SUEPO union and based in Munich. I am deeply shocked. Two of these staff members, one the Chairman of the Munich location branch of SUEPO, the other a former Chairman, have been dismissed. The former is even deprived of a part of her pension rights. The third staff member has been downgraded by a considerable amount. I note that President Battistelli set these sanctions well beyond the recommendations made by the EPO's disciplinary committees. These acts demonstrate a will to do evil, to frighten, to eradicate all criticism and any intermediate power is thus characterized.

"I contacted the French Government immediately. What has happened is a disgrace and a deep injustice. I expect the member states of the EPO, starting with France, to intervene urgently to put an end to arbitrariness and this tendency that ruins lives, destroys families and undermines the work of the entire organization. It is inacceptable for the immunity enjoyed by the organization to lead to such deviations from the rule of law, based, among other things, on respect for the rights of trade union representatives and staff, the independence of disciplinary committees in relation to the management and proportionality of sanctions, as much as questions largely ignored here.

"An organization has a future only when its staff identify themselves with it, with its governance and its management. This is no longer the case to the EPO. It is urgent for member states to reflect on the reasons that led to to this. And consider seriously replacing the governance of the EPO and its management."

Today's news is an utter disgrace, and indeed, as a previous commenter remarked, is Batistelli's two finger salute to the AC and the whole patent community. Being above the law, he can do what he wants.

"According to the petitioner, the European Patent Office is an international European institution which does not fall under EU law. He proposes that the EU contacts the EPO in order to conclude an interinstitutional agreement which would enable Members of the European Parliament to address parliamentary questions to the EPO and improve the parliamentary supervision of the EPO. The petitioner also asks the European Commission to harmonise national substantive patent law so that patent law becomes part of the acquis communautaire and the major differences which currently exist between the national patent law systems are removed. The EPO cannot deal with these differences, but has become the de facto harmoniser of patent law owing to its position as the provider of patents. According to the petitioner, the current situation is lacking a legislator and the development of patent law is concentrated in the hands of the executive and the judiciary. This is contrary to the separation of powers. The lack of balance between the powers means that it is difficult to respond to the fact thatpatent law affects areas other than that of EU policy, such as industrial policy, European standardisation and research policy. Moreover, the petitioner believes that the lack of harmonisation of substantive patent law weakens the negotiating position of the EU in matters relating to patent law with respect to third parties (WIPO, SPLT, TRIPS+, etc.)."

See also http://techrights.org/2015/12/28/petition-regarding-epo/ http://techrights.org/wp-content/uploads/2015/12/petition-epo.pdf

Each of you represents views and standpoints of hundreds EPO employees, even when fired or downgraded.Firing and downgrading those views is news of today.

I hope a lot that you are not without support at this moment.You might as well consider the following.

The ILOAT dispute resolution procedure usually takes years. Probably, the EPO internal procedure, before the ILOAT, also takes time.

It might be worth to try to initiate interim proceedings before a national court in order to receive interim measures/decisions in your dispute with the EPO.

You, examiners, have a rare profession. There is a few and almost no places where you can be employed according to your qualification. Thus, irreversible deterioration of your qualification, which you have been building for years, will take place during the years before the ILOAT has chance to look into your situation. Even a positive decision of the ILOAT would not compensate for years of lost practice in your profession.

The urgency related to effective irreversible loss of profession, in view of Art. 6(1) European Convention on Human Right "In the determination of his civil rights [...] everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ", might justify interim measures/decision from the national court.

The European Court on Human Rights has many decisions on "a reasonable time of judicial proceedings", starting from Capuano/Italy ECHR 25 june 1987.

Wake up all staff of the EPO! Enough is enough! Are going to accept such a working conditions? You are all without exceptions citizens of democratic countries. Stop the tyrant before it is to late! Who is going to be next?

Remember, the staff of the EPO is the engine that keeps the office running. I urge you to enter an unlimited strike until the tyrant and is cronies are fired and gone forever. The sadistic plans of team Battistelli will stop working if you stop the engine before BB crashes you against the wall. Don't let intimidate you. Get rid of him!

@Cat:"The ILOAT dispute resolution procedure usually takes years. Probably, the EPO internal procedure, before the ILOAT, also takes time."

Nowadays there is no internal appeal against disciplinary decisions, so the dismissals (and the downgrading) are appealable directly to the ILOAT.

One could hope for accelerated treatment of dismissal cases by the ILOAT. That also seems to be its practice, at least until recently. Many older dismissal cases were decided within 1.5 years with most of that time being spent on two rounds of submissions. But the more recent case of Judgment No. 3297, for example, took about 3.5 years from the filing of the complaint.

Today was the darkest day in the history of the EPO. The firing of two of the staff representatives and the downgrading of the third are punishments which are in now way commensurate with the alleged misdeeds of the accused. It´s very much like shooting somebody for not having a valid bus ticket.

To take away somebody´s livelihood because he made public a letter addressed to himself is a sign of a particularly mean and vengeful character.

The legal proceedings the three staff representatives have been subjected to are cases of institutional harassment that should lead to a strong intervention by the delegates of the AC, an overturning of the decisions and finally, the dismissal of the main culprit, B. Batistelli, who after yesterday´s decision has lost the right to be called a manager (ruthless dictator is now the proper definition). The same applies to Elodie Bergot, his stooge.

If there is somebody who brought the EPO into disrepute it is Batistelli and his minions. At this stage they cannot even claim a golden handshake. Everyone involded in this travesty of justice should be removed as soon as possible.

Almost unbelievable that one of Ms Hardon's alleged crimes was to reveal details of ongoing investigations (about her) and to have thus allegedly caused an offence to those involved. In the meantime the EPO higher mgt have gone to the press to reveal personal details about the DG3 member but that has gone without any action although seemingly contrary to any concept of sub judice and impartiality. Clearly it is seen as a war and the end result defines the means.

Interesting but disgraceful case, 3297. ILOAT seems to ignore all standards of principle law here! Very odd and imminent for future cases. Moreover keep in mind that the defendant in that case was acquitted by 2 Dutch criminal courts! Proves that the staff is unprotected in such cases and moreover proves also that ILOAT is obsolete.

What is awful is the fact that BB can claim that all his actions are perfectly legal.That the harassment has not been queried by a member of staff being allegedly harassed, but by Mrs Bergot, the "best" candidate for Head of personal according to her mentor BB, is legal. It is however a blatant misuse of the legal framework.The disciplinary committee proposes, but the president disposes. He can take any decision he thinks fit. Thus his decision in the matter is legal.The same goes with the joint/advisory committees. They can propose and the president disposes. In the past the, the General Advisory Committee (GAC) was composed from members of the management (Directors and PD), but when BB came, he put all the VP as members in the GAC. It was anyway rare that they management representatives gave an opinion which was not along the line wished by the upper management, but it could happen, when the administration went too far. With the present manning, what else can the VP do than rubber stamp the decisions they have agreed to take in the Presidential Committee (That was actually the source of problems with R 19/12 as VP3 was sitting in those 2 instances). This is all perfectly legal, but there again a misuse of the law.All what BB has done in that respect can only be qualified as misuse of power and of the law. What is done here is not to respect the deep meaning of the law, but to take advantage of it and crush others.It is high time that this maleficent person and his minions leave the EPO. He has brought the EPO in disrepute and has totally ruined the atmosphere. In his eyes, he might think to be a good manager, what is even to be doubted. Even as a good manager you do not need to rule by fear. He is certainly not a leader, making a good case and trying to commit his people to follow him in his visions. BBs vision are limited to reigning as a king, enjoying life and having a court of crawlers and minions sustaining his immoderate ego. Rumours has it that BB will tour South America at the end of the month, and even go to Cuba. We might thus have even more “validation” states the Morocco and the Republic of Moldova, whereby Tunisia is still to come.

Why are the individual members of the AC so supine? Here some thoughts.

Recall the scandals at FIFA. Everybody knew what was wrong, but nobody did anything. It was because Mr Blatter managed the flow of dividends to individual members in such a way that most of them thought Blatter a hero. I wager that most EPC Member States see BB as a hero, for much the same reason. A few days ago I heard somebody say that the flow of money from the EPO is what funds (almost entirely) the entire Justice Ministry of Germany. Think on how such money flows might affect voting at meetings of the EPO's AC.

Recall that the only thing that disturbed the steady state at FIFA was when the Americans decided to put their boots on. But the USA has no seat on the AC at the EPO. Don't expect the 5th cavalry riding to the rescue any time soon. Europe has to sort this out on its own.

Why do AC member countries who should know better, and care more, do nothing? Perhaps because thgey cannot get a majority on the AC and so do not want to start a fight with BB that they cannot finish. Read the book on the Dreyfuss Scandal in Paris and see what it took to win against the Establishment in Paris. Seems to me that very little of the French mindset has changed in the intervening 120 years.

Fine words though (about not laying a finger on the SUEPO officers); they don't cost anything at all. They salve the consciences of the AC members who utter these bold words, allowing them to say to themselves that they did everything possible to defend basic human rights and the Rule of Law.

Misgovernment, mismanagement. Troubles like at the EPO seem to be, these days, in international bodies, endemic, even inevitable. No wonder England wants to get out of the EU. What a pity it lacks today the confidence it used to have, that its legal system, founded on equity (fairness), is a model that ought to commend itself to everywhere else in the world. If it still had such confidence, it would have more "soft power" round the world. In the past, it would have been in permanent intensive dialogue with the other AC Member States, to build a consensus, and then would have spoken up more, at meetings of the AC.

Middle England has been brain-washed by its foreign-owned media, over decades, to be xenophobic. The English press barons want an offshore tax haven that includes London, England. They have most of the English politicians in their pocket (which is why the UK member of the AC says and does nothing). It's all very sad.

If the reputations of the EPO, it's President, and the AC sinking into the mire is not a matter affecting the European patent system and the Organisation, then what is?

If the hoped for launch of the unitary patent is not a matter affecting the European patent system and the Organisation, then what is?

The delay in meeting is God's gift to the conspiracy nuts, and shows a singular lack of management by, or management of, the managers. A bloody mess like this is the last thing needed before the UK goes into a referendum (I know the EPO is not the EU, but shit sticks to those that throw it, those that receive it, and even those just standing close by).

The principal role of fonctonnaires is to make things function, not spread disfunction. No one is covered in glory by this affair.

It occurs to me that the departure of the UK from the EU might suit La Grande Nation very nicely. No more unpleasantness with Germany and the UK seeing issues similarly, and different from France. Instead, France can resume its former role, of lording it over the rest of the EU, spending the EU budget largely harvested from the taxpayer in Germany. BB is working in the national interest, that's for sure.

The rest of the EU should mull over whether that would be the optimal outcome for their citizens. And then get stuck in, at the EPO-AC (amongst other places).

The EPO staff representatives have been a thorn in the side of Battistelli and his cronies. They have performed sterling work in criticising the various ill-concieved reforms with logical and irrefutable arguments exposing the incompetency of the upper management at the EPO, in particular VP5 Raimund Lutz. The vicious and disproportionate punishment dished out by Battistelli shows how well the staff representatives have done their jobs in exposing him and his inner circle for what they are.

Knowing the EPO from the time of Bob van Benthem, the first president and one of the fathers of the EPC and of a successfull EPO, I felt very sad yesterday and also the whole year 2015 because of the very bad news I received regularly. Bob was an honest and high level patent specialist. But he was also a generous and sensitive human being. He was an excellent manager. That time it was impossible that when you worked for the EPO, your wife could get a job there. The EPO did not like two ¨privileged¨ in one family. Now Battistelli created his gang with for the biggest part french friends and family members. Moreover Battistelli has by far not the high quality of Bob. He is not a honest and a high level patent specialist. He is a not a human honest person but a dishonest and cruel person and not only because of that not able to be a manager. Battistelli is the first president who needs body guards. He is the first president who avoids contact with the directors and examiners. He is the first president who needs Contro Risks and illegal phone and PC taps. I hope that he and his gang will soon be dismissed and replaced by a normal functioning mamagement.

The EPO staff representatives always did excellent work. Els Hardon advised me once in a case in a very good and detailed manner. She is very intelligent and for SUEPO the right woman on the right place. I fully agree with Anonymous here above that the vicious and disproportionate punishment dished out by Battistelli shows how well the staff representatives have done their jobs in exposing him and his inner circle for what they are. I think with his decision Battistelli shot in his own foot.

Somebody further up asked why Merpel in particular and attornesüy in general should worry about a case which appears to deal with disgruntled trade union members?

Well, do you really think somebody who respects his employees so little and treats them with such a contempt for legality would be anymore lawabiding when it comes to his clients.

He may seem superficially client friendly and indeed a lot of pressure is exerted on the examiners and board members not to refuse applications or otherwise bite the hand that feeds them. But indeed, most attorneys are not at all in favour of the Unitary Patent. They won't be treated any better when it turns out there is a conflict of interest between huge overseas multinationals and local economic entities.

you are mistaking. BB serves only HIS interests. He is not at all appreciated in Paris where his folly is known by the current administration (remember that he was already nominated as Hollande won the Elysée).

He has even retaliated against France when their representative in the AC started to voice concerns

From a legal point of view the punishment by cutting a percentage of the pension rights seems to me blatantly illegal. The pension is an acquired right and it is hard to find any case law supporting this. The closest cases I found involve reduction or withholding of state pension benefits for individuals convicted of crimes. Citing the respective bill (1): "These include embezzzlement, felonius theft from the state or a quasi-public agency, bribery, and felonies in which the person willfully and with intent to defraud obtains or attempts to obtain advantage for himself of others through use of his office."Other punishable offences under US law are "espionage, treason, or several other national security offenses against the United States." (2)

A labour law attorney could probably find better cases in the EU legislation, although I doubt it is possible to find such a situation happening in the context of an EU organisation.

I guess ILOAT will find Batistelli´s decision illegal. Let´s hope it will happen before he leaves.

A little off topic, but Anonymous at 17:37 said "most attorneys are not at all in favour of the Unitary Patent".

If true, that would indicate that most attorneys are more concerned with legal niceties than with client interests. I do not think this is true.

It is true that the UP is sub-optimal, but that does not mean it won't be used.

Many are against the UP for the same reasons many were against the EPC - "I will have to learn something new"- "I don't trust an untested and new institution"- "I will be getting a sub-optimal outcome"- "It's more expensive than one country"- "Central opposition/revocation is scary"

Many will dive into the UP for the same reasons - "It reduces cost of separate equivalent protection"- "It reduces management costs"- "It increases certainty"- "Never mind the quality, feel the width"

Unless Brexit occurs, the UP will be heavily used, because it makes sense. it might not be the best UP we could have had, but it is pretty good.

So,mebody above tells me that BB is not appreciated by the present incumbent of the Elysee Palace in Paris.

Well yes, of course. As I understand it, Hollande and BB are on opposite sides of the political playing field. As I understand it, BB is a Sarkosi-ite and gets his reward next time there is a change of occupant of the Palace.

The Office states to have had its best year ever (evil tongues might say: as usual, since the current President took over): highest output, top quality, reduction of backlog, costs under control, bonus.

Why does the President fire union officials? He should be able to get the union on his side. Staff normally has an interest in the employer: he pays the salary.

I presume the President is simply unable to accept diverging opinions and to control and restrain himself. What is not explicitly forbidden is allowed. Common sense or even wisdom are probably words this President neither hears nor understands. Exercise of discretion? Terra incognita, it seems.

How did the President get this position? Are there no checks or tests at all? He is completely incompetent to operate and decide without a supervisor, keeping a firm grip on him.

Law was not Law which altered when it alteration foundor bent with the remover to removeoh no, it was an ever-fixed mark,that looked on tempests and was never shakenIt was the star to every wandering bark,whose worth unknown, although his height be takenLaw was not times fool, Law altered not with his brief hours and weeksbut bore it out even to the edge of doom.If this be error and upon me proved,I never writ, nor was justice ever done.But beyond the edge of doom, Law is no more.

[…] Indeed, this case is about the rights of trade unions to take collective action and to conduct collective bargaining, that is to say this is about rights belonging to the fundamental principles of an open and democratic constitutional state and which have been recognised in multiple treaties [...]

[…] The Appeal Court considers it sufficiently plausible that SUEPO et al. experience hindrance, or that they experience a threat of hindrance, from the measures which EPOrg has taken in connection with the strike actions. […]

[...] It has already been established above that SUEPO et al. are sufficiently representative. The Appeal Court did not find any valid arguments in EPOrg's assertions why they should not be admitted to collective bargaining. The right of collective bargaining has also been regarded by the ECtHR as an essential part of the freedom of assembly and association guaranteed by Art. 11 ECHR [...]

DecisionThe Appeal Court:

ordersEPOrg within 7 days after service of this judgement to give VEOB et al. unhindered access to EPOrg's e-mail system, more in particular to make sure that emails originating from '@suepo.org' are no longer blocked, that the use of group mail for trade union purposes is no longer blocked and that trade union representatives sending general communications via their personal work email address to EPO employees in connection with trade union related subjects are no longer threatened with disciplinary measures;-prohibits EPOrg with immediate effect from applying Art. 30a par. 2 of the Service Regulations and Art. 30a par. 10 of the Service Regulations (insofar as this provision grants the authority to the President to determine a maximum duration for the strike);-orders EPOrg to admit VEOB et al. to collective bargaining within 14 days after service of this judgement;

These are just some passages in the decision issued by the Dutch Court of Appeal almost one year ago against the European Patent Office.

Maybe not many people remember it, but already at that time it was found that "SUEPO et al. experience hindrance, or that they experience a threat of hindrance, from the measures which EPOrg has taken [...]"

The decision came back to my mind after the dismissal of the two SUEPO officials.

Well, I guess we all should thank the Dutch government for having decided not to enforce the decision of an independent court for the latest actions of Mr. Battistelli - after all, the message from the Dutch minister was quite clear: you're free to do whatever you want, Mr. Battistelli!.One year later, the consequences are here for all to see - and what an irony that the most prominent victim of Battistelli is a Dutch citizen! (Elisabeth Hardon)

Ah, and many thanks to the Administrative Council of the EPO too, who did not think that having the Office being accused of infringing human rights was so important after all. What happened in the last days, honourable members of the AC of the EPO, are the results of your greed, lack of morals and cowardice.

As an expression of personal protest against Germany, the host country of the EPO which incomprehensibly continues to tolerate on his soil the dictatorship of Mr Battistelli & Co. (as the Münchner Merkur put it: "Die letzte Diktatur auf dem deutschen Boden" after the Nazi and DDR regimes), whenever possible, I will stop buying or using German goods or services until the German Government takes clear position against the blatant violations of human rights and rules of law at the EPO.I ask all the readers of this blog, who still care about justice and the future of the EPO, to join me in this boycott.It might sound irrelevant but every long walk begins with a small step.

MaxDrei,Indeed, when Hollande came to The Netherlands on a state visit a couple of years ago (strong) rumour has it that the EPO was asked by the French to let its auditorium be used for an event but the request was turned down at the highest level. I'm sure there was a good reason such as being immune territory and thus problematic vis-a-vis security and access for the public. But...

Boohoo, cry me a river! Two employees have been fired.Do you know how many get fired daily in the real world?And judging from the letters published by Techrights, this was even justified after them harrassing colleagues.Get real people, also staffreps can make mistakes. And they also get to pay the price.

The host countries have a special responsability as they get the benefits of hosting. Do you know how good is for the Munich economy to host the EPO?The minimum you an expect from the host country is vigilance.The Germans are keeping their eyes shut.They do not reserve respect any longer.

Sure, people get fired. Yet, the first reason is.... lacking secrecy on your own case? Sure, that publication reflects badly on the EPO, so it does contravene the ServRegs, but does it reflect badly because of the stuff being published, or because of the content? And who is responsible for the conten?

The alleged harrasment? The Disciplinary Committee pointed out that only one of seven witnesses that were "interviewed" (with extremely suggestive questions) was able to confirm the case....

I have sincere issues with how the case was handled.Also, implementing a harsher punishment than proposed by the DC?

Furthermore: further reforms were put on the tables of the consultative organs, where the staff representation was lacking representatives. I'll bet that BB will use the votes, which were now 10 pro and 9 no as a proof that the reforms are wanted by the majority of staff, as those will be the first ones where he did not have to break the tie as chairperson in the obligatory consulting...

Anyway, think what you want, you're able to make your own opinion, and it is your right to point out that most employees are worse off. But those do have access to court decissions in a reasonable time, we do not. Thus we have no means against an unjustified firing.

As extremely sad as this is, the firing of the two and the severe sanctions against the third (she has no hope of ever reaching her former salary again) elected staff representatives and elected union leaders are, unfortunately, just the tip of the iceberg. There are many, many more who have been investigated, harassed, intimidated, or quietly forced into retirement. And just imagine the shivers this imparts to the remaining staff: most of them patent judges in search, examination, opposition, and appeals.

On the broader scale, the system of checks and balances, if it ever deserved the name as it has been designed in the EPC (dear authors, I'm sorry having to write this) and the Staff Regulations, has been made an utter mockery by Mr. Battistelli. Administrative Council is being mishandled; anybody who dares to disagree sees her cooperation budget annihilated, not to mention the time allotted to her country in the various committees drop precipitously.

Mr. Battistelli's "social democracy" has made it much more difficult for staff to voice opinion or raise grievances. A million miles from striving to design a better system, Mr. Battistelli apparently takes particular pleasure at creating conflicts of interest and opportunities for harassment and intimidation. The former General Advisory Committee, a forum for management and staff representatives to discuss proposed changes at the Office that are of importance to staff, has been re-designed into the General Consultative Committee and to the point of irrelevance that Mr. Battistelli has no inhibitions about publishing the list of its members for 2016 with more members from the (top) management than those appointed by the staff representation, then reducing the staff side further by firing the next day.

In addition, the very staff representatives that have now been fired had already been reporting directly to PD HR. Even the rules for election of staff representation - a very important function, separate from the unions, in the social contract in Germany and, formerly, the EPO - have been designed by the administration. These are just a few examples; there are lots more in all important areas of the Office. The internal appeals process has been made much more intimidating to the appellant than it ever was. The system of occupational health and data protection have been all but killed. Small wonder that this has lead to several colleagues taking their lives recently.

Having fired the most courageous staff reps, Mr. Battistelli has reached new heights. No individual in the Office and hardly anybody in the Administrative Council dares to contradict him. It appears that it is only a matter of time before all staff will be afraid to demonstrate.

What's on the plus side? Production has gone up, possibly at the expense of quality, and most staff still have a job that many of them can hardly afford to leave, having abandoned their careers as engineers and scientists years ago. It's less secure than before, much less pleasurable, in some aspects becoming shameful.

Maxdrei said "It was because Mr Blatter managed the flow of dividends to individual members in such a way that most of them thought Blatter a hero. I wager that most EPC Member States see BB as a hero, for much the same reason."

Money makes the world go round and, yet, Mr. Battistelli's approach is more comprehensive than that. For example, when a member of a country's Administrative Council delegation has dared to say something that wasn't in the script, time allotted to that country's delegation in meetings of the various committees can get drastically cut. Most EPC member states probably don't see BB as a hero. Unfortunately, they simply don't think they have an alternative to agreeing to what he wants from them.

Good point! That would most possibly align the EPO policies with the national host countries laws, international law and human rights... and of course avoid conflicting situations as we experience now!

Troll sat alone on his seat of stone,And munched and mumbled a bare old bone;For many a year he had gnawed it near,For meat was hard to come by.Done by! Gum by!In a cave in the hills he dwelt alone,And meat was hard to come by.(Tolkien)

To CynicThe first request from the french embassy was never answered by the EPO higher level.The second request received a stinging refusal "à la Battistelli".Rumours has it that Hollande appreciated the act to its fair value.

" And judging from the letters published by Techrights, this was even justified after them harrassing colleagues....

No, I`m not a management troll, just being realistic."

Thank you for constructively indicating that you are NOT a troll. The reader might have doubts after reading your submission . I suggest you re-reading the corresponding documents on Techright, of course only because you are not a troll!

Just sayin',Thanks for that. Since the accused are not allowed to reveal that they are accused, let alone what they are accused of, your insight is useful. Since one reason for dismissal was to reveal that they were being investigated, I guess that is also normal? And (allegedly)assisting someone who hasn't been disciplined for allegedly doing something was a second reason. Again normal? And the complainant being the one who led the investigation and led the prosecution? Normal again?

I appreciate that sometimes bad things happen, but is that reason to accept it? And when that comes from a body operating in the legal world and with seeming total legal immunity, is that not questionable? I see your point, but I have to politely disagree.

A number of commentators here have referred to BB's political connections in France and the fact that he holds elected office as a municipal councillor in France (St. Germain-en-Laye) on a party ticket for the UMP (in the meantime rebranded as "Les Republicains").

However, nobody seems to have noticed that such involvement in national party politics is in breach of the standards required of an international civil servant according to ILOAT Judgment 1061:"... an international civil servant, though entitled to hold his own political views, must stand aloof from demonstrations of adherence to a political party. Integrity, loyalty to the international civil service, independence and impartiality are the standards required of an international civil servant and they require him to keep clear of involvement in national party politics."http://www.ilo.org/dyn/triblex/triblexmain.detail?p_judgment_no=1061

From his decision to fire and downgrade SUEPO officials it is clear that for Battistelli individual people does not matter. What is important for him, he believes, is a strong central managementment. Individuals have to be forced to accept the roles given to them in the office. Examiners are producers, workers for him. These workers experience now that their rights at work are more and more taken away. The SUEPO is banned by Battistelli and has to be replaced by a ¨Union¨ according to his model and wishes.Battistelli studied at the ENA ( https://en.wikipedia.org/wiki/%C3%89cole_nationale_d'administration )is a so called énarque.The énarques were criticised as early as the 1960s for their technocratic and arrogant ways. Such criticism has continued up to present times, with the énarques being accused of monopolizing positions in higher administration [the EPO] and politics without having to show real competence. It has become a recurrent theme for many French politicians to criticise ENA, even when they themselves are alumni of the school.

The EPO certainly has the right to cut pensions, it says so in the service regulations. Actually, when one reads the service regulations, the EPO can even do that more than once, cutting your pension by a third with each round. The EPO can also do that to pensioners and widows. And the President can decides what he wants and fire you even when the disciplinary committee says otherwise, as he did with Ion Brumme. Obviously, the service regulations were not written in that spirit, and were never used this way in 40 years, but Battistelli is sticking to the letter of the law. And ILO will certainly find it this way as well, in practice ILO only checks whether the service regulations were correctly applied.

Further, the service regulations can be changed at will, as the EPO personal recently found out: career cuts, suppression of invalidity insurance, etc... When you enter the EPO, you sign a contract which you have to respect under penalty of being fired and have your pension cuts... and the EPO can change its end of the deal whenever they want. This kind of contract have a legal name, but nobody realized what they were really offered when they entered the EPO. Now they realize but they can't get out.

Also, this is not only the EPO staff. Patent attorneys would be well advised to check how easily the EPO could damage them. The rumor (unverified, maybe someone knows more?) is that some attorneys were already "gently advised" to stay quiet in their private blogs. Obviously, the attorneys can't get out either, but they have not realized the full extent of the deal yet.

The EPO was given enormous powers and a wide-ranging immunity, with very little check and balances to compensate them. There is not even a decent control system of the EPO finances and the EPO is producing 300 millions a year in surpluses. Anybody can imagine the consequences. Battistelli put one of his old good friends to audit the EPO finances.

HelloKitty,Indeed. The current penalty of 20% of pension clearly leaves room to increase that to 1/3 if the fired person does not go quietly and/or discloses any details. Likewise, those fired without deduction still risk further steps if they, for instance, discuss their cases without permission. Note also the desire to control former staff's employment (denied by the AC) which, of course, be enforced by attacking any outstanding pension rights. As you say, BB has seen the opportunity for unfettered control and is using it.

A quick translation (forgive any clumsiness, this was one pass only) of the French Minister's missive:

Philip Cordery French MP representing French expats living in the Benelux wrote on Facebook16 January at 01:31 · Brussels, Belgium ·

A Dark Day at the EPO.

The antisocial management of the EPO, led by its president M. Batistelli, has today reached a new low. Unprecedented sanctions were levied against three staff representatives:The President of SUEPO in Munich fired, receiving a 20% pension reduction;The former SUEPO president, fired, its treasurer having employment grade reduced by 8 levels (equivalent to 15 years of work)The motive?

Having deigned to publicly represent their colleagues for attempting to defend their rights.

These authoritarian and arbitrary decisions are absolutely scandalous. The most fundamental rights of employees, in force throughout Europe, are flouted within the EPO, without any national or international jurisdiction able to act. Immunity is not the same as impunity.

For too many years, the social situation of the EPO has been declining. Enough is Enough. The Member States must act, and quickly, following the example of France which has on numerous occasions demanded a social audit. I have petitioned the government again in this regard. We must urgently put and end to the arbitrariness, and bring back to life this organisation which is so important to the whole of Europe.

I want to assure all of the personnel, and notably their representatives, of my full and total support. We will remain vigilant and will act with all possible means until democracy and justice are once again rightly at the heart of the EPO.

It looks as if all initiatives at the EPO are directed towards reducing its competence in respect of deciding at a low-cost level who has the better right to an innovation. The EPO is increasingly directing its efforts to enable conflict resolution at a high-cost level, for instance by performing searches resulting in lists of patents that have to be analysed privately. The results of these analyses are used in evaluating the chance of winning a court case, and the prospects of the costs are becoming so forbidding that a settlement is preferable. That part of the industry that most needs it is made incapable of predicting a likely outcome of an investment in novel technologies. The purpose of the patent system was to increase innovation, not to create stagnation.

One of the attempts to stifle the technical and legal competences of the EPO is the proposed re-organisation of the Boards of Appeal. The most direct and well-argued opposition to the official proposals has come from UNION-IP, an NGO that has many EPI members. Their statement was published in epi-Information No. 4 of 2015, pp. 120-22 (available at http://patentepi.com/assets/uploads/documents/epi-information/epi_Information_4_2015.pdf -- do your own copy-and-paste). The expression "already barely in line with a juridical independency" is used in relation to the reappointment rules as they stand, even before any revision. It is to the great credit of epi that they have published this incisive text.

On a different, but equally potentially detrimental matter a contributor to the journal, Mr. A. Hards, expresses his views on the re-organsation of the EQE. (making combined papers A and B for both mechanics and chemistry; same issue pp. 142-43). I read his contribution as if he considers the re-organisation of the EQE to be a 'dumbing-down' of the whole profession. He utters surprise: "It cannot be understood, why the German candidate system can support a full 6 months’ training course at the German Patent Court with lectures, courtroom participation and courses from seasoned patent judges, while the EPO has nothing comparable. Where are the Board of Appeal members? Where are the EPO legal experts and the veteran examiners? These are the guardians of EPO patent case law and prosecution and as such they are the best sources of knowledge for grassroots training."

It is my impression that the EPO system is systematically developing towards less interest in 'EPO Case law'.

The suppression of professionalism of the EPO examining staff that is now out into the open contributes to the same end: a reduction in official capacity to stave off conflict. Those professionals who have acted as quiet reporters of the trend (which they discovered before anybody else) are being considered as whistleblowers in the style of pharmaceutical and tobacco companies. The acts of infringement of these persons' human rights are blatant but apparently not culpable under any applicable law.

It is completely incomprehensible that the EU is capable of prohibiting the labelling of produce from the Israeli occupied West Bank as originating in Israel or to institute observation proceedings against Poland even before any act of suppression of the freedom to speak, but the EU is still able to contract a subsupplier to patents with unitary effect from an entity that suppresses human rights far more. I consider that any contract entered into should be annulled and re-negotiated, taking full account of the human rights situation in the EPO system. Any contraventions of human rights having already taken place must be nullified and full compensation given. The respect for the EU is being pulled down by the company it keeps.

I can only agree with George that everything is made to run the EPO in the wall. The question is simply for the benefit of whom? I do not like the conspiracies theories of Mr Schestowitz, but in spite of all the exaggeration shown, there may be something true in them.I long wondered if BB had a hidden agenda. It is actually not hidden. The one discernible is: I am the boss and I decide what I want, irrespective of any proposal of decision of a joint committee staff/management. This is a perversion of law. That EPO needed a reform as it was set in many ways is not to be denied, but it did not to be as drastic as it fell out. And not simply to satisfy the ego of such a nasty person as BB. May be it was time to have an investigation unit, but nobody, but he and his minions, guessed how it could be misused.The pressure on the examiners has become such, that in spite of their pride and professionalism they often have no choice but to deal quickly with searches and the ensuing examination. They do not even anymore have the choice of the file they can deal with. They have to follow what the computer says! It might be understandable that is happens on a factory chain, but not when it comes to such an intellectual job. The people presently running the EPO are not even managers, they are morons thinking they are managers. In any private corporation they would have been fired, but the members of the AC are spineless, at least for most of them.It might boost production to deal with easy files, but it will backlash as difficult ones will eventually to be tackled.What is happening with the Boards of Appeal is a scandal. Making a proposal in which the Boards would have no say on their own rules of procedure is unbelievable. As an alumni of one of the “better” schools of France, BB should know what separation of power means. He has conveniently forgotten it. At least he has shown the deep disdain he has for anything not dancing at his tune. That BB is at odds with the present French authorities is to be seen in another situation. BB organised in Lyon a gathering to celebrate 30 years of cooperation with SIPO. Not only were the French authorities not invited, they were not even informed. Look at http://documents.epo.org/projects/babylon/eponot.nsf/0/7E1A61AB656965E2C1257E8F004CD6F8/$File/epo-sipo_symposium_programme_en.pdfThis has to be seen against the instructions given to staff off the EPO when visiting member states to inform the national patent office. Do what I say, but do not dare do what I do….

As George Brock-Nannestad has pointed out, one important effect of the increased production pressure at the EPO has been a dramatic increase in costs for small European businesses. Take the examination procedure, for example. Until a few years ago, we could normally rely on the examiner to analyse cited documents carefully and to give reasonably complete arguments. Nowadays, we see ever more cases in which the examiner has clearly not studied the cited prior art in enough depth, and gives a wrong and/or highly abbreviated analysis of patentability. In the best case, such a deficit can be dealt with by a competent patent attorney, at a largely-avoidable cost to the applicant of a few thousand EUR up to grant. In the worst case, a small applicant may either give up (if the examiner's assessment is overly negative) or proceed to grant with an inadequate patent (if the examiner has missed some important clarity or patentability issues). Here, the costs to the small applicant are incalculable.

The next step in that evolution is that examiners will be given less time to reply to the applicant's submission. Expedite prosecution will be preferred for the sake of a number: mean prosecution time. In other words, applicant's submissions will not be adequately heard and applications will be expeditely refused. Unless the applicant is so big to complain effectively. Of course.For doing this, control of the BoA would be necessary so that the clog to be produced by the increased number of appeals be dealt with in a proper manner, i.e according to the orders of the President.

Are you suggesting that the quality of examination at the EPO is down? This simply cannot be possible. According to the last message of the President, in 2015 quality in examination was 98,7%, and 98,6% in search. These results are comparable to the voting results at the meeting of the Central Committee of the Bulgarian Communist Party! (cue to members of the Administrative Council of EPO giving a standing ovation).

Clap x3,Last year VP1 was complaining about the number of areas giving 100% results as he considered that impossible. The figures are self-assessment where the errors spotted by your colleagues (friends or foes?) are counted. There are other figures which a separate department calculates which are less North Korean but less impressive in a presentation.

BB and his gang assault another staff representative: Laurent Prunier. The latter is on sick leave. BB decided to simply cut Mr Prunier's salary at the end of the month. That is once more in breach of the applicable law.

Interesting theory I heard from an HR services company.They often encounter CEOs that push for contract prolongation, and directly afterwards start doing more and more questionable things, and make themselves totally unwanted by staff, until the board of contractors fire him. The golden handshake simply is larger that way...

They often see it with CEOs well beyond retirement age. Those do not make themselves unemployable by others, as they actually want to retire, but also want a big golden handshake.

A real problem exists for those who (silently) supported the CEO, as those get burned by his tactic and become unemloyable for other companies, but won't get such a nice golden handshake.

But the EPO is a political body, this tactic seems to be more difficult to achieve, if that even is the case.

Just remember the Presidential staff notice published here http://techrights.org/2015/02/22/the-epo-topic-affair-coverup/

"Note to All StaffOver the past couple of days an obviously concerted effort has been made to attack the reputation and standing of the Vice-President of DG 4, Mr Topic. This has taken the form of anonymous letters being sent and/or made available to EPO employees.In the face of this vicious campaign, I wish to make clear that the allegations are without any foundation. They have already been dismissed by the Croatian authorities. Furthermore, Mr Topic engaged legal proceedings some time ago in Zagreb, for criminal slander and defamation as well as for damages against parties who have published the allegations."

HelloKitty sais above:¨Further, the service regulations can be changed at will, as the EPO personal recently found out: career cuts, suppression of invalidity insurance, etc... When you enter the EPO, you sign a contract which you have to respect under penalty of being fired and have your pension cuts... and the EPO can change its end of the deal whenever they want. This kind of contract have a legal name, but nobody realized what they were really offered when they entered the EPO. Now they realize but they can't get out.¨.When this is true the advertisement asking for new examiners and other staff of the EPO should mention this. Also the SUEPO has an information task. Everything possible should be used to change these rules. Such contracts are against all existing national rules and laws.This is something for the European Court of Human Rights (ECtHR; French: Cour européenne des droits de l’homme) is a supranational or international court established by the European Convention on Human Rights. It hears applications alleging that a contracting state has breached one or more of the human rights provisions concerning civil and political rights set out in the Convention and its protocols. The contracting states, in particular The Netherlands and Germany are tolerating the terrible situation in the EPO.

Dear Mr Kilroy, the European Patent Office does not adhere to the European Convention on Human Rights. Your request is therefore irreceivable.

Sorry to be blunt, but you are not the first person to suggest to go to this or that court, etc... Much have been tried, and the EPO always won in the last instance on the simple ground of immunity. How long will it take before people start to realize that there is no legal recourse whatsoever against the EPO?

The problem is with the system. There is NO legal recourse.

This is valid for all parties: staff, European patent attorneys and applicants. It is just that it has only be used against staff at present.

The immunity from the ECHR applies to the EPO, and all cases I have heard of have attempted to bring the EPO to court. However, the member states are not immune from the ECHR, and they could be brought to court for signing an agreement (the EPC) which is incompatible with the European Convention on Human Rights.

The BoA member was accused of spreading defamatory stories about VP4. I can't remember the full details but the issue seemed to include the allegations about cars which have been at the heart of the case in Croatia which has been settled. And not in VP4's favour it seems. Maybe there's another level of appeal t come?But, in any case, the courts seem to consider that the Croatian lady's statements were not defamatory. So presumably the BoA member could not be making defamatory statements either?? And the sacked Union chairwoman (even if she did give him help - denied by her I think) could not be assisting in any defamatory act?A tangled mess. The EBoA may have been right in their analysis and maybe the AC was misled about the certainties? However it plays, nobody comes out of it well but, unfortunately, the only ones who suffer were actually ones who seem to be innocent.It does raise, again, the question of what laws do apply within the EPO. The vague accusations of defamatory statement making do not specify under what set of laws. Clearly, Croatian law does not consider them defamatory. Does the EPO pick and choose these extra-territorial definitions or does the president make it up as he goes along?

Dear HelloKitty:The member states, in particular the Netherlands and Germany, are not immune from the ECHR. They could be brought to court for signing an agreement (the EPC) which is incompatible with the European Convention on Human Rights. There are a lot of such incompatibilities as follows inter alia from the Judgment of the Dutch Court of Appeal(26/02/2015) The Office has progressively and severely eroded a number of fundamental union and human rights. The countries are aware of these incompatibilities and wrongnesses and tolerates them and accept the catastrophic situation within the EPO.

Kilroy (18:00) raises an interesting point, and one that has been bugging me ever since these allegations started leaking out of the EPO.

If we are to believe Team Battistelli, the suspended DG3 member and assorted staff members have been engaged in all manner of "deplorable" activities: slander, defamation, intimidation, threats of violence, hacking, hoarding of fascist propaganda, stockpiling of weapons, and so on and so forth to ever more fanciful extremes.

Perhaps some or all of these are offences under, say, German or Dutch law. But the EPO repeatedly asserts total immunity from any jurisdiction. So according to what law do these activities - even if they *have* taken place, which is far from being proven to any degree, let alone beyond reasonable doubt - constitute an offence within the walls of the EPO? German law does not apply in Munich HQ, nor Dutch law in the Hague branch, or so we are asked to believe. That being the case, how have the accused employees committed any offence?

Presumably the ServRegs are the source of "law". Now, I can believe that these might foresee the need to deal with everyday workplace disciplinary matters such as bullying and harassment. But did the authors really have the foresight to include, say, storage of propaganda, or weapons? I find this hard to believe.

The Rule of Law, respect of Human Rights are not a matter of "votes" ("... and the results are ... 18 for and 20 against - the proposal to abide to the Rule of Law and Human Rights at the European Patent Office is therefore rejected by this Administrative Council. Thank you ladies and gentlemen. We will now pass to the next important topic on the agenda ... oh yes, the colour of the moquette in new building at the Hague ...").

It is all in the service regulations actually. These specify that the staff should be "loyal" to the organization. There is some reason in that: somebody criticizing patents in the open would not be acceptable as a patent examiner, for example.

The slight change here is that the EPO changed "loyal to the organization" to "loyal to the president and his friends".

The member states are more immune from the ECHR than you think. Violations in international organizations are not that uncommon. Just staying in patent world: what happened to the staff representative fired at WIPO last year?

I should also insist that the legal vacuum does not only concern examiners. To take a known example: after the criticism raised during the Inventor of the Year event, Battistelli decided to lower the priority for French searches in retribution against the speech of Ms. Lemaire (the EPO searches for the French patent office since the times of the IIB). The examiners had no choice, because they will get bad marks if they don't process the files in the order the computer presents them, a change introduced last year.

Basically, French searches were delayed about 2 months in comparison to PCT searches for US applicants. One can easily figure out that this may put French applicants at a disadvantage, given that these early searches are used to take a decision to pursue or not the file during the priority year.

Do you think French applicants have a way to complain about that revengeful decision? No, they don't. There is simply no applicable law and no competent tribunal.

(HelloKitty) A reason more for very soon a diplomatic conference to change this for Europe, the small industries/applicants and the examiners wrong and dangerous EPC. The absence of applicable law and the absence of a competent tribunal should be changed soon.The european states are "constitutional states" in which the exercise of governmental power is constrained by the law. It is the opposite of a state based on the arbitrary use of power.

...and before someone objects that human examination is needed: Battistelli is French and France had a registration system for patents. France tradition is that examination is not necessary.

Well, of course substantive examination is not actually necessary. The French and Swiss manage very well without it, thank you very much. It's the applicant's responsibility to make sure that his claimed invention is new and inventive. Nothing wrong with that, as long as everyone understands what's expected of them. And you need a decent patent attorney, of course.

If you're going to have examination, though, you had better make sure that it's damn good. The worst situation of all is where you have a search and examination process which is held up as being top quality, and is therefore trusted by applicants, opponents, national courts, the UPC..., but is actually pretty shoddy. This leads to all kinds of trouble and expense, but sadly this kind of trouble and expense occurs far beyond the reach of the EPO's quality monitoring.

I'll say it again: poor examination favours large corporations at the expense of the little guy. Better not to examine at all if you can't examine with really excellent quality.

Of course there are some revolutionary souls amongst us who wonder why the EPO is search French national applications (or for that matter Belgian and Italian applications) and PCT applications filed at the USPTO when it has such an enormous backlog of European applications awaiting search and examination.

The President does indeed seem to believe that the EPO is totally immune from national law, but this is not what the EPC says. Art 8 EPC: [the EPOrg and EPO employees] "shall enjoy...the privileges and immunities necessary for the performance of their duties". Those "duties" surely mean the granting of patents and nothing more.

Similarly Article 3(1) of the protocol on privileges and immunities states: "Within the scope of its official activities the Organisation shall have immunity from jurisdiction and execution", and Article 3(4) "The official activities of the Organisation shall, for the purposes of this Protocol, be such as are strictly necessary for its administrative and technical operation, as set out in the Convention."

So: only official activities are immune, official activities being things strictly necessary for performing the EPC. This is not a blanket immunity, despite what the president might say!

What would happen, for example, if a crime such as assault or theft was committed in the EPO premises in Munich? Clearly this is not immune according to the above definitions, and the Munich police would be involved.

However presumably the EPO management/lawyers, if challenged, would argue that breaching human rights is "strictly necessary" for the operation of the EPO - say because various staff activities were somehow impeding the grant of patents.

But note the double-standard here when the president alleged that the suspended board member possessed in the EPO building an item that could be classed as a weapon "under German law". So clearly national law can be applied when it meets management's needs.

(German weapons law, by the way, includes in its definition of a weapon portable objects which, due to their properties, method of operation or how they work, are able to remove or reduce humans` ability to attack or defend, *even if not intended for that purpose*. So with the "defendant" gagged and unable to respond, an innocent piece of exercise equipment becomes a "weapon" - when the EPO decides for once that German law is relevant, after all...)

MaxDrei said...It becomes clearer, why the AC members sit on their hands. The more they protest, the more vindictive BB gets, venting his ever-growing pleen against those employees that incur his displeasure.

If you sat on the AC, with one vote in 38, what would you do?

err, grow a pair?

The AC: spineless, careerist, self-interested. To misquote a misquoute: All that is necessary for the triumph of evil is for good men to do nothing.

AC: We need urgently a President-dicator that can tell the difference between a good President and a bad President. If he’s a good President, we shine him up and broadcast him all over the world. But if he’s a bad President, down the garbage chute.

JK: Wait a minute. Strike that last thought. Reverse it. Thank you.

BB: I don't understand it. The unionists are disappearing like rabbits. Well, we still have each other. Shall we press on?

Regarding the application of National law - this is again up to the President via PPI Art. 19(2).

So if there is a murder or assault, the President would apply it and hand over to National Police and Jurisdiction. If you just have some weapon, he does not lift immunity officially, but just applies what he considers to be fair.

Regarding immunity and the rule of law within the EPO buildings,does EU health and safety law apply? If even arguably not, then how can we, as EU employers, send our staff there e.g. to Oral Proceedings, surely we are then in breach of our duty of care to our employees?

Pseudononymouse

PS UK should not ratify UPC and EU should not subcontract anything to EPO until these issues are clear.

In a reaction of President Battistelli dated 20 November 2015 (http://www.pyleborgn.eu/2015/11/crise-a-loeb-reponse-du-president-battistelli/ ) on the letter of Pierre-Yves Le Borgn` député des Français de l`étranger dated 18 November 2015 send to Mr. Emmanuel Macron, Ministre de l`Economie et de l`Ìndustrie I read the following:

In English ¨First of all, it is completely false to affirm that of them " cross-examinations of a rare violence" would have been led. It is of as much easier to prove than these interviews are recorded. Otherwise, it is not acceptable to throw the discredit thus on the unit of investigation of the office, composed of mothers and fathers of devoted families having a task often very difficult but indispensable in struggle against the fraud, the harassment and other offenses that can destabilize our organization. ¨

Your behavior is disgusting Battistelli. You speak about fathers and mothers in the Investigation Unit. The disciplinary committee did not recommend dismissal for Ion Brumme because he has five children - one is just a baby - and a loan to pay on his house, but YOU Battistelli dismissed him. Shame shame shame. Battistelli writes further that these interviews of the Investigation Unit are recorded. Why was it not allowed to Mrs Els Hardon to make recordings? I am sure you have many things to hide. Of course you will never make public your, perhaps manupulated, recordings. The trial of Mrs Hardon of her disciplinary procedure is missing even elementary fundamental principles of the law.It also seems that Mr R. Lutz feels home in this dictorial system.

"Regarding immunity and the rule of law within the EPO buildings,does EU health and safety law apply? "

While the answer to this question is unclear, it was noticed that, when stricter smoking regulations were introduced in Germany (designated smoking areas usw.) the EPO quickly adaopted a sinilar policy:

@Joe Soap: yet the smoke alarms are disabled in certain offices to ensure proper functioning of the office, and at least one person has been relieved of their position because of complaints when someone smoked on their working place.....

Regarding national law applicable or not: I find it problematic to fire someone because of aleged violations against German law, when no court has decided that the used formulation in the SUEPO financial support clauses are illegal.There have been legal opinions presented by the union that these clauses are legal.The office claims they have a legal opinion of an independent attorney stating otherwise, but they refuse to present it to anyone.This is s.th. a German judge has to decide on, as it relates to German law.But German law is not applicable to the EPO, therefore such a judge's decission is not necessary.

Joe Soap said: "While the answer to this question is unclear, it was noticed that, when stricter smoking regulations were introduced in Germany (designated smoking areas usw.) the EPO quickly adopted a similar policy."Well, the truth is that all EPO buildings are no smoking zones. The president however had the smoke detectors in his presidential suite on the 10th floor of the Isar building and those in a small room next to the auditorium, which he uses in interruptions of the AC meetings, disconnected. So much for his respect of the law, regulations and - worse - of his staff´s security.

Well, I cannot see where the examiners are DOING something as sign of protest.Obviously, demonstrating in public is not as effective as expected, the people "outside" EPO are not sensitve when workers earning 10k are not happy.If the AC can only be influenced by results, well, logically, it only remains one thing: producing less. I wonder when they will realize this. Of course, this would mean that they should say "bye-bye" to their bonuses...

@Baron: anyone is being pressurised to prodce at least 10% more than average.Otherwise you're threatened with ....

I foresee a breakdown.

Besides putting down work, all other industrial actions are considered to violate your contract and WILL lead to disciülinary procedures. "go slow" (producing less than average) is considered s.th. warranting dismissal now."rechecking applicable procedures", "going by the book" and other quality actions where you take the time and recheck whether you missed s.th. according to the guidelines are not allowed industrial actions.together with the scrapped training budget, we examiners are given no chance to read what the changed regulations are. Except in our private time.

Yeah, facing dismissall because you want to do it right the first time is not a sign of trust.

… Again this year approx. 50 warning letters for under-performance will be issued or a voucher for a stiff session of institutional harassment …thereby securing some clientele for EB’s HR Conflict Resolution Department!

Producing less is the road to dismissal in a performance-driven organisation.

Early Serenity from Search is such a success that many directorates start working on search files of priority group 4 and tackle the examination backlog by grant/refusal procedures not evolving from the tidious case law of the boards, but from on-demand just-in-time efficiency requirements. Those will be implemented preferably by five-year contractor examinators that can then be disposed of in a more flexible and legally solid manner, thereby also reducing the CO2-emmissions drastically.

The problem is that the experience you gain as an EPO examiner is of limited use outside the EPO. Once you have been there a decade or so, you're effectively stuck there for life. You don't discover this until you actually start applying for jobs. Then you quickly realise that you will have to take a a real-terms pay cut of 50% or so if you really want to leave. I've been there, so I know what I'm talking about.

This is why I think that Battistelli is so cruel and vindictive. The man basically has you guys by the short and curlies, and he knows it. In the absence of any effective restraint from the Administrative Council, he can squeeze your pips as hard as he likes, and you will still dance obediently to his tune.

A few years ago, I would still have recommended the job of EPO examiner as a responsible and intellectually fulfilling job, albeit with the caveat that it's difficult to make the transition back to the real world. These days, I would urge any prospective candidate to think very carefully indeed before selling their soul to such an organisation.

What about everyone calling in sick? In these circumstances I think most doctors would support that having to work under such unbearable pressure and threats is sickening and causing massive burn outs. It will be interesting to see how the situation develops if BB declares the sick people not sick, against the doctors' advises. Which he may, according to the new rules, unbelievably.

sick people will declared "not sick";interesting question :if somebody "not sick" causes an accident (e.g. falls down an escalator) and injures/kills somebody else, because of the prescribed medication he had to take, will BB take the blame ?will the EPO pay the damages?

The history of labour disputes is full of examples, such as the "blue flu") of non-cooperation of labour with management. But such history is all irrelevant to life inside the EPO, unless it concerns a labour dispute in a land where there are no courts. A land in which there is just a President who is investigator, prosecutor, judge, court of appeal and the sentencing authority, all rolled into one malevolent all-powerful being, an alien entity who looks down on his subjects from a satellite orbiting above them.

Recall the example of Admiral Byng, the British Admiral who in the 18th century was executed on his own quarter deck, in front of all the officers of the Fleet. Did he forfeit his pension rights? No doubt he did too!

Why did the Naval Authority do that to him? Why "pour encouragez les autres" of course. BB probably knows the story and has learnt something from it.

To answer the question about the applicable health and safety law: The applicable law is that of the host state, see article 16 (I think) of the PPI which imposes on the EPO the duty to co-operate with the host authorities for the observance of this law. However, the EPO has consistently defied this provision, not just in the notorious case of the suicide on office premises, but also earlier in The Hague, when the Dutch Labour Inspectorate sent a letter politely requesting a discussion as to how such co-operation could be arranged, only to be firmly rebuffed.

After a long series of negotiations between the Staff Committee and the management a comprehensive health policy for the EPO was agreed, which among other things, looked at the applicable legal framework. Part of the agreement was that the President would ask the AC for permission to co-operate with the national authorities as laid down in the PP, not that any such permission was needed. The request was never made, despite many reminders from the Staff Committee.

It may interest readers to know that the health policy also adopted a comprehensive health policy based on best practice which included the prevention of occupational illness, reintegration of sick staff, fair provisions for the verification of sick leave, the settlement of disputes by a panel of three doctors, the confidentiality of medical information, etc., etc. All this took place in the Pompidou/Brimelow era and the policy was patchily applied, due to management hostility. Nevertheless, it covered every aspect of the subject, and contained a provision for periodic review, which could have been used to remedy any defects found in practice. It was a model of a negotiated approach to a thorny problem in which both sides strove to solve each others problems.

Of course, all this was all immediately swept away by Battistelli. Occupational disease no longer exists, nor does confidentiality of medical information. The head of the health department is now a lay person, who reads confidential medical files. Battistelli or one of his minions will decide if you are sick or well, over-ruling qualified medical advice, and will decide on arbitrary grounds if and how much sick pay you receive. If you have a long-term illness you will face a form of house arrest for up to 10 years, before you may be allowed to return to your home country.

The speed and ferocity with which the health policy was dismantled shows just how much BB knew he had to fear from its correct application.

I am sure that an examiner's job can be difficult, but if the comment above ("Once you have been there a decade or so, you're effectively stuck there for life. You don't discover this until you actually start applying for jobs. Then you quickly realise that you will have to take a a real-terms pay cut of 50% or so if you really want to leave") is true, that tells me that such "golden handcuffs" just mean that examiners are overpaid - per what the markets will bear for that skill set.

The "can't leave" seems self-induced and appears to be more in line with a "don't want to leave."

To give one example, I left examining after 5y and am now an EPA working in a south German city for the last 10y. I'm currently earning 3400 EUR netto. I assume there are EPAs earning much more and possibly others earning less!

BB may have read his Voltaire.But perhaps he should also have studied Blyng's epitaph:

To the perpetual Disgraceof PUBLICK JUSTICEThe Honble. JOHN BYNG EsqrAdmiral of the BlueFell a MARTYR toPOLITICAL PERSECUTIONMarch 14th in the year 1757 whenBRAVERY and LOYALTYwere Insufficient SecuritiesFor theLife and Honourof aNAVAL OFFICER

US Anon,A rather poorly thought out logic. First, the conditions reflect the relatively limited number of candidates with the required skill set (including degree subject and triple language ability among others). Secondly, it reflects the fact that any candidate will leave their domestic job market and, as was pointed out, be ever less able to return. Hence to attract someone who knows they may not get another job afterwards, the EPO has to make a good offer.In practice, this 'offer' or contract has now been unilaterally diminished. When I started I was given the Codex of employment conditions (100s of pages) and told to read it before signing my contract of employment. Now in post that was unilaterally changed - and not to my benefit..Now it is fair to say that times change and in the notional 'real world' that and worse does happen. But normally that is as a result of deep need when a company has difficulties. The non-profit making EPO does not appear to be in any financial difficulty. To be changing conditions and threatening dismissal for not obtaining obscure new demands while taking advantage of conditions does seem unsupportable. It is the equivalent of raising the price of house once you know the buyer has sold their old house and has nowhere to live. Market driven according to your logic but at the least unethical.

Market laws can only work well when the parties respect the contracts they sign and this is exactly the problem here: the EPO made promises upon which people decided to come and is now breaking their end of the deal unilaterally.

Of course, in the long run, market laws do work and the EPO is experiencing it at present: the EPO has great difficulties recruiting. The conditions are simply not competitive compared to engineering jobs in Munich and job applicants have been known to refuse the post because they could get a better deal elsewhere. The level of candidates has also decreased. Simply said: you get what you pay for.

such "golden handcuffs" just mean that examiners are overpaid - per what the markets will bear for that skill set.

That skill set is acquired over a long learning period (seven or eight years minimum), and it is very valuable indeed. But only to the EPO. So market forces don't really apply here.

Of course, if you are prepared to accept mediocre examination and high examiner turnover, then market forces would be the way to achieve it. But the (invisible) cost to the small applicant would be huge, as I think I may have mentioned once or twice.

The same logic could be extended to, for example, doctors and teachers. If forced to leave their respective professions, either might find it difficult to find jobs that can make use of skills sets acquired by, say, a surgeon or a physics lecturer, and accordingly be forced to look at significant drops in salary. Presumably teachers and doctors are also overpaid. Indeed, one might say the same about patent attorneys. I have acquired a particular skills set over my time as a patent attorney that are unlikely to be particularly transferrable.

Your own "logic" is faulty, as it is circular, and fails to accord with the provided "facts" (I can only assume that the view provided is indeed correct and that the skill set of the examiner - no matter what that skill set is - simply does not afford any comparable pay level outside of being an examiner).

Your "logic" simply boils down to a view solely of the examiner position and simply fails to note that we are NOT talking solely of the examiner's position. Rather, you need to consider the notion of "transferable skills."

Rather than "jump" on my comment and whing about lack of logic - maybe you should step back, and contemplate what is being discussed.

Further, your attempt to broaden the point is a logical failure (your last few lines on ethics). Read again my post - I do note sympathies - just not the sympathy for the Golden Handcuffs.

HelloKitty, you too go too far in your point. I was addressing the (singular) notion of Golden Handcuffs. If other things are happening - if as you put it, "the EPO made promises upon which people decided to come and is now breaking their end of the deal unilaterally" - THAT is clearly outside the point concerning the comparable pay item that I responded to.

Ex-examiner-now-patent-attorney, Your point is simply not valid - as you would dismiss the problem brought up by someone else and to which I responded. Your "beef" then is not with me but with the person who attempted to use the whinge of "Golden Handcuffs" to begin with. As I stated herein, I do have to take that person's view a s a given fact. You might want to think about that before making the grand announcement that "market forces don't really apply here" - since they obviously very much DO apply to the individual (at least) to whom I initially responded.

You may have an interesting point in your last paragraph, but I think that THAT point goes in an entirely different direction than the "Golden Handcuffs" discussion. Who is harmed (and who benefits) from a degraded quality of examination - at least in the States - is a nuanced and intricate discussion. I do tend to agree with you that it is not the small applicant that is the primary beneficiary of such a "weaker" system, but that was not the discussion point at hand.

Your patent attorney skills could be transferred to a different firm. Same goes for doctors and teachers. By contrast, an EPO examiner's skill set is peculiar to the EPO. No other patent office requires trilingual engineers who know and understand the EPO examination practice.

US Anon,If I understand you correctly - which seems to be how others also see it - you consider that the correct pay for a job is the best pay you would get if you weren't doing that job? In other words, the highest pay you can get is by definition wrong since you wouldn't get that anywhere else? An interesting thought which far from being market orientated, actually has a whiff of communism since all jobs will automatically trend to the same wage irrespective of the job and it's required skill set. How very odd.

US Anon,By the way, you consider that I have gone off topic and ignore the concept of transferable skills. That, however, is your diversion. Your pay is not set by your transferable skills - it is set by the skills you possess, transferable or not. if only one employer needs it and only one person possesses it, there is still a fee to be paid. And on that note, I may head off to check if the EU needs a Norwegian<>Portugese translator. Not a transferable skill at a legal level and not in demand, but if they need me...

Apart from the intervention of James Carver (see youtube), I've not seen coverage of the EPO in UK media. No interest? Not even in the run-up to the referendum? Not even in a referendum where a few hundred votes might make a drastic difference? What will a random UK voter think of the current EPO administration, and the way it handles its workforce? And what's the odds that, given his exceptional achievements at the EPO, BB is rewarded with something much bigger, like, next president of the European Commission? Would the Brits oppose? Would anyone oppose?

"French MP Philip Cordery (Deputy for French Citizens of Benelux) issued a post (dated 9 January 2016) in which he indicates that he has sent a letter (dated 14 December 2015) to Guy Rider, Director General of the International Labour Organisation (ILO). Translations are available in English, German and Dutch."

To further Anon of 16:45: How do the British feel that a EU referendum is coming, but the government is making an exit more difficult by signing the UPC?

But the media is rather silent everywhere. Süddeutsche has exchanged the reporter covering the EPO, and the new lady seems to be under pressure to produce articles, and seems to have less time for investigation.

But like a friend said: how can we generate public interest when we cannot even catch the interest of our users, more specifically, the representatives?He said that when there still have been strikes.

To those querying the view of the British voter in a the forthcoming EU Referendum, I think you need to perform a reality check. Even if someone raised the topic, the arcane world of IP is not going to interest the vast majority of voters. Compare:

EPO management's unfair treatment of staff

with

'Bally foreigners coming over here and stealing our jobs'

'Bally foreigners telling us what to do'

'Bally foreigners coming over here for our benefits and NHS'

'Hard working British taxpayers paying for lazy Frenchmen to sit around doing nothing all day'

and so on.

IP, and in particular the EPO, is not going to being to register.

Oh and there have been a couple of mentions of labour relations at the EPO in Private Eye (a fortnightly satirical/news magazine for those not familiar with the British press).

An interesting point in IPKat´s recent article on the INGRES conference on developments in European IP law 2015"Ursula Kinkeldey, as a former permanent member of the Enlarged Board of Appeal at the EPO no longer subject to the EPO's president's disciplinary powers, addressed the referral G1/15 concerning partial priorities, but not without first expressing her concerns over the "tumultous" (quote/unquote) staff relations at the EPO. Sticking to facts, let's just recap that as of 1 January 2016, 7 (25%) Technical Boards were without president, 14 (13%) of technically qualified member positions were vacant and 7 (21%) of legally qualified member positions were vacant. One board in the field of electrical engineering had only two technically qualified members, and the situation is expected to get worse in 2016. The firing of two SUEPO members last week led to a wave of solidarity namely for Ion Brumme, who is hard hit by the loss of income for his family. The plan to move the Boards of Appeal to Vienna, on the other hand, seems to be shelved."

“I’m sorry, but I don’t want to be an emperor. That’s not my business. I don’t want to rule or conquer anyone. I should like to help everyone. We all want to help one another. Human beings are like that. We want to live by each other’s happiness - not by each other’s misery. We don’t want to hate and despise one another. In this world there is room for everyone. And the good earth is rich and can provide for everyone. The way of life can be free and beautiful, but we have lost the way.” (CC - The Great Dict… Speech-)

Scharfmacher,And presumably the two Hague staff representatives are being investigated or disciplined since the reference to them being forbidden to talk about something corresponds to Hardons crime where she was accused and found guilty of revealing that she was being investigated.A disgraceful way to ensure that an accused cannot summon any defence. How can a civilised society bear the scourge of secret trials?

Under German Law, or UK or French law etc, should an employer (I am think patent attorney firms) send their employees into a building, if they know that (local or EU) health and safety law does not apply, or is not applied, inside that building?

What is the liability on the employer for doing so?

If the employee agrees to go into the building, and has been warned by his employer that if he enters the building, health and safety law does not apply, does that absolve the employer of the responsibility?

If the employer does NOT warn the employee, what is the employers liability?

Employers of patent attorneys would you send your employees into such a building?Employees (patent attorneys) would you enter such a building?

@Pseudononymouse: What would that achieve besides Oral Proceedings in absence of a party?Our president would find that advantageous for faster processing of the files...-a mofiosi by presidential decission

Having read a lot of the comments posted, my only conclusion is this blog has a very biased viewpoint.From personal experience and direct dealings with some of the members of Suepo, I found them to be very heavy handed and always quick to attack Management instead of trying to mediate and resolve disputes in a civil manner.Ion Brumme, does not have 5 children, he has two large houses and also has a wife who works for the Patent office. Therefore, in contradiction to the propaganda, they are not the victims everyone has portrayed them to be. In fact in the case of Ion Brumme , he is very deserving of the punishment. Having been on the receiving end of his constant direct bullying, I can confirm more people than will declare it openly agree the management in the EPO were well within their rights to punish certain members to the extent they have.

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